sexual health and human rights in the african region - The ICHRP

[87] National Coalition for Gay and Lesbian Equality and Others v Minister of Justice and
Others is important for acknowledging unapologetically that at an erotic level,
same-sex is part of the human variation in the domain of sexuality and sexual
expression. The rapport between the Courts decision and international human
rights is obvious. Not only did the Court draw from progressive decisions of
human rights courts and tribunals, but even more significant, it went beyond the
terrain reached by such courts and tribunals by placing the right to equality at
the centre. It follows from National Coalition for Gay and Lesbian Equality and
Others v Minister of Justice and Others that the duty to respect, protection and
fulfillment of sexual health is a duty that is not only owed to those of a
heterosexual persuasion. The duty is also owed, in equal measure, to people of
different sexualities who engage consensual acts that do not harm others.
[88] By categorically vindicating the right of an individual to self-determination
regarding their sexuality primarily on the basis on equality and human dignity
rather than the right to privacy, the case established a human right standard that
is higher than that established be the European Court on Human Rights 331 and
the United Nations Human Rights Committee. 332 The manner in which the
Constitutional Court approached the constitutional right to privacy was also
significant in that the Court explicitly recognized that respecting the right to
privacy of gay men means recognizing that sex between men is intimate that it is
part of the nurturing of relationships between gay men. 333
[89] National Coalition for Gay and Lesbian Equality and Others v Minister of Justice and
Others has paved the way for fundamental reforms that have been instituted in a
diverse range of socio-economic spheres in South Africa with a view to ending
331 In the following cases, for example, the European Court on Human Rights based its decisions that
domestic laws which criminalized consensual sex between men constituted human rights violations
solely on the basis of article 8 of the European Convention which guarantees the right to privacy:
Dudgeon v United Kingdom (1982) 4 EHHR 149; Norris v Republic of Ireland (1991) 13 EHRR 186; Modinos v
Cyprus (1993) ECHR 19.
332 In Toonen v Australia Communication Number 488/1992 (31 March 1994) UN Human Rights
Committee Document No CCPR/C/50/D/488/1992 the United Nations Human Rights Committee
based its finding that a provision of a Tasmanian Penal Code that criminalized consensual sex between
men primarily on the basis of the right to privacy in article 17 of the International Covenant on Civil and
Political Rights. At the same time, however, it is important to note that the Committee attempted to base
its decision on wider grounds. At least, the Committee was amenable to framing the issue in terms of
violation of the right to ‘sexual orientation’ thus render the issue and equality one. The Committee said
that for the purposes of determining a violation under article 26 of the Covenant, the phrase ‘other
status’, is to be taken as including ‘sexual orientation’. The Committee also said that the reference to ‘sex’
in article 2(1) of the Covenant is to be taken to include ‘sexual orientation’: I Saiz ‘Bracketing Sexuality:
Human Rights and Sexual Orientation – A Decade of Development and Denial at the UN’ (2004) 7(2)
Health and Human Rights 49.
333 W Le Roux ‘Sex Work, the Right to Occupational Freedom and the Constitutional Politics of
Recognition’ (2003) 120 South African Law Journal 452, 462.
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